The Supreme Court has recognized that "willful . . . is a word of many meanings, its construction often being influenced by its context."[4] This was reflected in congressional debate over the No Electronic Theft (NET) Act amendments to the Copyright Act. Senator Hatch, the Chairman of the Senate Judiciary Committee, advocated that in copyright crimes "'willful' ought to mean the intent to violate a known legal duty,"[5] because a lower mens rea could cause "the net" of criminal sanctions "[to] be cast too widely."[6] Senator Hatch cited several cases in which the Supreme Court had construed "willfulness" in this fashion when the substantive law was complex, such as Cheek v. United States,[7] in which the Court held that the general principle that "ignorance of the law or a mistake of law is no defense to criminal prosecution," must yield given the complexity of federal criminal tax statutes. In other words, the defendant's good-faith misunderstanding of the legal duties imposed on him by the tax laws would negate a finding of willfulness.[8] This reasoning has been applied in other contexts as well.[9]

A lower standard for "willfulness" was advanced by Representatives Goodlatte and Coble, who introduced and sponsored the bill in the House. They rejected the notion that defendant must be familiar with the copyright code and what constitutes infringement. Rather than require "knowledge" of a legal duty not to infringe, they interpreted willfulness to require only that a defendant have "reckless disregard" for copyrights:

“

The Government should not be required to prove that the defendant was familiar with the criminal copyright statute or violated it intentionally. Particularly in cases of clear infringement, the willfulness standard should be satisfied if there is adequate proof that the defendant acted with reckless disregard of the rights of the copyright holder. In such circumstances, a proclaimed ignorance of the law should not allow the infringer to escape conviction.[10]

”

Aside from clarifying that evidence of infringement, by itself, does not prove willfulness, Congress has left the term's definition to the courts.[11] Most courts that have interpreted "willfulness" in criminal copyright cases have adopted the more stringent standard advocated by Senator Hatch: the intentional violation of a known legal duty.[12]

A minority of courts in criminal copyright cases have applied "willfulness" to set a lower bar for prosecution. United States v. Backer,[13] is frequently cited as applying the lower standard, that of merely having the intent to carry out the activities of infringement without knowledge that they constituted infringement. In that case, the defendant had arranged for a manufacturer to duplicate a copyrighted figurine as closely as possible without, in the defendant's words, "copyright trouble."[14] The Second Circuit found the evidence sufficient to support willful infringement, noting there could not "be any fair doubt that the appellant deliberately had the copies made and deliberately sold them for profit."[15]

It is not clear, however, that Backer represents a circuit split. The case can also be read as holding the defendant's mention of "copyright trouble" to be sufficient evidence of his knowledge of a legal duty not to infringe. Moreover, more recent civil copyright cases suggest that the Second Circuit interprets willfulness to require either actual knowledge that the infringement violated the law, or perhaps "constructive knowledge" shown by reckless disregard for whether the conduct violated copyright.[16] This approach is consistent the Seventh Circuit's ruling in United States v. Heilman, a criminal copyright case holding that the government proved willfulness because the defendant "chose to persist in conduct which he knew had a high likelihood of being held by a court of competent jurisdiction to be a violation of a criminal statute."[17]

The majority rule in criminal copyright cases for a higher standard of willfulness is also consistent with civil copyright cases, which likewise hold that willfulness is not just an intent to copy, but rather an intent to infringe.[18] The issue arises in civil cases when plaintiffs attempt to recover increased statutory damages, which are available only for willful infringement. [19] Congress's use of the term "willfulness" in closely proximate sections 504 and 506 of the Copyright Act suggests that the term should be interpreted similarly in both criminal and civil cases.

Given that willfulness requires an intent to infringe, or at least constructive knowledge of infringement plus a reckless disregard of the victim's rights, a finding of willfulness may be precluded if the defendant acted with a good-faith belief that he was not infringing.

"Willfulness is rarely provable by direct evidence, and most often can be proven only by inference from the evidence introduced."[20] Certain types of evidence in criminal copyright cases have been found particularly relevant to determine the defendant's intent:

The defendant's acknowledgment that his or her conduct was improper.[21]

↑See 143 Cong. Rec. 26,422 (remarks of Sen. Leahy) ("This clarification does not change the current interpretation of the word 'willful' as developed by case law and as applied by [the Department of Justice], nor does it change the definition of 'willful' as it is used elsewhere in the Copyright Act."); H.R. Rep. No. 102-997, at 4-5, reprinted in 1992 U.S.C.C.A.N. 3569, 3572-73 (discussion of Copyright Felony Act, Pub. L. No. 102-561, 106 Stat. 4233 (1992)).

↑See 4 Melville Nimmer, Nimmer on Copyright §15.01[A][2], at 15-6 to 15-7; United States v. Cross, 816 F.2d 297, 300-01 (7th Cir. 1987) (approving without comment a jury instruction that an act is willful when it is committed "voluntarily, with knowledge that it was prohibited by law, and with the purpose of violating the law, and not by mistake, accident or in good faith," and affirming conviction because the record amply demonstrated that the defendant "knowingly and voluntarily violated the copyright laws"); United States v. Moran, 757 F. Supp. 1046, 1049 (D. Neb. 1991) (holding that willful infringement means a "'voluntary, intentional violation of a known legal duty'") (quoting Cheek v. United States, 498 U.S. 192, 200 (1991)); see also United States v. Sherman, 576 F.2d 292, 297 (10th Cir. 1978) (upholding jury's verdict because jury "apparently either disbelieved the genuineness of this contract [which defendants claimed had licensed their conduct], or believed that defendants were not innocent of knowledge that the tapes provided were copies from the original artists' records", and noting that "willfulness" required proof of specific intent, but without clarifying whether that required proof that the defendants knew their conduct was unlawful, or merely knowledge that they were selling copies). Cf. United States v. Heilman, 614 F.2d 1133, 1138 (7th Cir. 1980) (holding that the government had proved willfulness because the defendant "chose to persist in conduct which he knew had 'a high likelihood of being held by a court of competent jurisdiction to be a violation of a criminal statute'") (quoting trial court).

↑614 F.2d at 1138 (citation and internal quotation marks omitted); see also 2 Paul Goldstein, Copyright § 11.4.1, at 11:51-11:52 (2d ed. Supp. 1999) (stating that the government must "prove that the defendant knew that his acts constituted copyright infringement or, at least, knew that there was a high probability that his acts constituted copyright infringement.").

↑See United States v. Heilman, 614 F.2d 1133, 1138 (7th Cir. 1980) (defendant's awareness that government was prosecuting individuals engaged in conduct similar to his own and that conduct had been ruled illegal by four federal and three state courts).

↑Cf. United States v. Gardner, 860 F.2d 1391, 1396 (7th Cir. 1988) (holding that when seller of "black boxes" for receiving unauthorized cable TV gave buyers a "Notice of Warning" that disclaimed liability for illegal uses, it was "establish[ed] that he was well aware that his actions were unlawful").

↑Compare United States v. Moran, 757 F.Supp. 1046, 1051- 53 (D. Neb. 1991) (court in bench trial finding police officer who operated a "mom-and-pop" video rental business not guilty, because he made single copies of lawfully purchased videos and rented the copies only to prevent vandalism of original tapes, and because his activities were "conducted in such a way as not to maximize profits, which one assumes would have been his purpose if he had acted willfully") with United States v. Sherman, 576 F.2d 292, 297 (10th Cir. 1978) (affirming conviction of defendants who claimed a good-faith belief that pirated tapes they manufactured and sold were "sound-a-likes," and thus noninfringing). See also Danjaq, L.L.C. v. Sony Corp., 263 F.3d 942, 959 (9th Cir. 2001) (stating that one who has been notified that his conduct constitutes copyright infringement, but who reasonably and in good faith believes the contrary, has not acted willfully)(citing 4 Melville Nimmer & David Nimmer, Nimmer on Copyright §14.04).